Citation Nr: 0520278
Decision Date: 07/26/05 Archive Date: 08/03/05
DOCKET NO. 04-14 745 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Lincoln,
Nebraska
THE ISSUES
1. Entitlement to service connection for tinnitus.
2. Entitlement to an initial compensable evaluation for
bilateral hearing loss.
REPRESENTATION
Appellant represented by: Nebraska Department of
Veterans' Affairs
ATTORNEY FOR THE BOARD
James R. Siegel, Counsel
INTRODUCTION
The veteran served on active duty from February 1949 to
February 1950, and from April 1952 to November 1953.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a July 2003 rating decision of the Regional
Office (RO) that granted service connection for bilateral
hearing loss and assigned a noncompensable evaluation,
effective from May 14, 2003, and denied service connection
for tinnitus. The veteran has disagreed with the denial of
service connection and the evaluation assigned for tinnitus.
FINDINGS OF FACT
1. The service medical records are negative for complaints
or findings pertaining to tinnitus.
2. Tinnitus was initially demonstrated many years after
service, and there is no competent medical evidence to link
it to service.
2. The veteran has Level III hearing in each ear.
CONCLUSIONS OF LAW
1. Tinnitus was not incurred in or aggravated by active
service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R.
§ 3.303(b) (2004).
2. The criteria for an initial compensable evaluation for
bilateral hearing loss have not been met. 38 U.S.C.A. § 1155
(West 2002); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
VCAA
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act (VCAA). This law eliminates
the concept of a well-grounded claim, and redefines the
obligations of the VA with respect to the duties to notify
and to assist claimants in the development of their claims.
First, the VA has a duty to notify the appellant and his/her
representative, if represented, of any information and
evidence needed to substantiate and complete a claim. See 38
U.S.C.A. §§ 5102 and 5103 (West. 2002). In this regard, VA
will inform the appellant of which information and evidence,
if any, that he/she is to provide and which information and
evidence, if any, VA will attempt to obtain on his/her
behalf. VA will also request that the appellant provide any
evidence in his/her possession that pertains to the claim.
Second, the VA has a duty to assist the appellant in
obtaining evidence necessary to substantiate the claim. See
38 U.S.C.A. § 5103A.
Notice
The Board notes that a VA letter issued in May 2003 apprised
the veteran of the information and evidence necessary to
substantiate his claims for service connection for hearing
loss and tinnitus, which information and evidence, if any,
that he is to provide, and which information and evidence, if
any, VA will attempt to obtain on his behalf. He was also
requested to provide any evidence in his possession that
pertains to the claims. As such, the Board finds that the
correspondence satisfied VA's duty to notify the appellant as
required by Quartuccio v. Principi, 16 Vet. App. 183 (2002)
and 38 C.F.R. § 3.159 (2004).
It is also noted that a recent case of the United States
Court of Appeals for Veterans Claims (Court) held that
compliance with 38 U.S.C.A. § 5103 required that the VCAA
notice requirement be accomplished prior to an initial
unfavorable determination by the agency of original
jurisdiction. See Pelegrini v. Principi, 18 Vet. App. 112
(2004) (Pelegrini II). Since VCAA notice was provided to the
appellant prior to the initial RO adjudication denying the
claim, the timing of the notice complies with the express
requirements of the law as found by the Court in Pelegrini
II.
The Court in Pelegrini II also held, in part, that a VCAA
notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. §
3.159(b) must: (1) inform the claimant about the information
and evidence not of record that is necessary to substantiate
the claim; (2) inform the claimant about the information and
evidence that VA will seek to provide; (3) inform the
claimant about the information and evidence the claimant is
expected to provide; and (4) request or tell the claimant to
provide any evidence in the claimant's possession that
pertains to the claim. This new "fourth element" of the
notice requirement comes from the language of 38 C.F.R. §
3.159(b)(1). See VAOPGCPREC 01-2004. As discussed above,
the Board has found that the appellant was provided every
opportunity to identify and submit evidence in support of his
claim.
All the VCAA requires is that the duty to notify is
satisfied, and that claimants be given the opportunity to
submit information and evidence in support of their claims.
Once this has been accomplished, all due process concerns
have been satisfied. See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38
C.F.R. § 20.1102 (harmless error).
With respect to the claim for a higher rating for bilateral
hearing loss, the Board notes that if, in response to notice
of its decision on a claim for which VA has already given
section 5103(a) notice, VA receives a notice of disagreement
that raises a new issue, section 7105(d) requires VA to take
proper action and issue a statement of the case if the
disagreement is not resolved, but section 5103(a) does not
require VA to provide notice of the information and evidence
necessary to substantiate the newly raised issue. In the
present case, the claim for an increased rating for bilateral
hearing loss stems from a notice of disagreement with a
rating decision which adjudicated entitlement to service
connection for that disability. As adequate VCAA notice has
been provided as to that issue, as outlined above, VA is not
required to provide notice of the information and evidence
necessary to substantiate the newly raised increased initial
rating issue. VAOPGCPREC 8-2003.
Duty to Assist
With regard to the duty to assist, the record contains the
veteran's service medical records and post service private
and VA medical records, to include the report of a VA
examination. The appellant has been afforded the opportunity
for a personal hearing on appeal. The Board has carefully
reviewed the appellant's statements and concludes that he has
not identified further evidence not already of record. The
Board has also perused the medical records for references to
additional treatment reports not of record, but has found
nothing to suggest that there is any outstanding evidence
with respect to the appellant's claims. Based on the
foregoing, the Board finds that all relevant facts have been
properly and sufficiently developed in this appeal and no
further development is required to comply with the duty to
assist the appellant in developing the facts pertinent to the
claims. Essentially, all available evidence that could
substantiate the claims has been obtained. There is no
indication in the file that there are additional relevant
records that have not yet been obtained.
Factual background
The service medical records are negative for complaints or
findings pertaining to tinnitus. On the separation
examination in November 1953, a clinical evaluation of the
ears was normal. A whispered voice hearing test was 15/15 in
each ear.
A private audiologist reported in April 2003 that the veteran
underwent audiometric testing the previous month. He noted
that the tests disclosed that the veteran had a mild low
frequency sloping to moderate high frequency sensorineural
hearing loss bilaterally. He added that the veteran
complained of a long-term constant tinnitus. He concluded
that, from the veteran's history of being exposed to the
noise of five-inch guns while in service, it was quite likely
that this was the beginning of his hearing loss.
The veteran submitted a claim for service connection for
hearing loss and tinnitus in May 2003. He reported that he
was exposed to the noise associated with five-inch guns while
serving aboard ship in the military.
The veteran was seen in the audiology clinic of a VA
outpatient treatment facility in May 2003. An audiometric
test showed that the hearing threshold levels in decibels in
the right ear were 20, 35, 55 and 60, at 1000, 2,000, 3,000
and 4,000 Hertz, respectively. At corresponding frequencies
in the left ear, the hearing threshold levels were 20, 25, 50
and 60. It was indicated that the veteran had been exposed
to loud gunfire.
The veteran was afforded an audiometric examination by the VA
in June 2003. The examiner noted that she reviewed the
claims folder. A questionnaire associated with the
examination report notes that the veteran left blank a
question concerning the date he first started having
tinnitus. In response to the question asking if he was
unable to remember the month/year, he was to circle the time
frame that was closest to the onset of tinnitus, he circled
"15 years." The veteran complained of hearing loss and
tinnitus. He stated that he was stationed aboard ship and
was trained to fire the five-inch open mount guns on deck.
He asserted that they often bombarded the shore of the Korean
coast during the war. He claimed that the concussion of the
guns was so strong that it would blow the helmet off if it
was not strapped on. He related that following service, he
worked for three years as a farmer and many years working
construction and general labor. He described the tinnitus as
a constant ringing noise in both ears and maintained that it
had been present for the previous 15 years. On the
authorized audiological evaluation, pure tone thresholds, in
decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
35
55
55
LEFT
10
25
45
55
Speech audiometry revealed speech recognition ability of 78
percent in the right ear and of 80 percent in the left ear.
The diagnosis was that the veteran presented with a mild to
severe high frequency sensorineural hearing loss and
subjective tinnitus. The examiner commented that although
the whispered voice hearing test revealed normal hearing at
separation, this was not a frequency specific test and might
not reveal a high frequency hearing loss. She concluded that
since the veteran's tinnitus did not begin until many years
after service, it was not likely to have been precipitated by
military noise exposure, nor was it likely to be related to
his hearing loss.
Analysis
I. Service connection for tinnitus
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
service. 38 U.S.C.A. §§ 1110, 1131.
Service connection may be granted for disability which is
proximately due to or the result of a service-connected
disease or injury. 38 C.F.R. § 3.310(a) (2004).
Establishing service connection on a secondary basis requires
evidence sufficient to show (1) that a current disability
exists and (2) that the current disability was either caused
or aggravated by a service-connected disability. Id; Allen
v. Brown, 7 Vet. App. 439, 488 (1995) (en banc).
Service connection may also be granted for disease that is
diagnosed after discharge from military service, when all of
the evidence establishes that such disease was incurred in
service. 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet.
App. 503, 505 (1992).
The veteran asserts that service connection is warranted for
tinnitus. He argues that he actually told the VA examiner
that his tinnitus began in service, but that it became
increasingly worse in the last 15 years. In fact, the June
2003 VA examination report establishes that the veteran
claimed that his tinnitus began about 15 years earlier. This
is specifically noted in the report of the VA examination.
In addition, when he completed a questionnaire for the
examination, the veteran specifically refused to provide an
exact date for the onset of tinnitus, and indicated only that
it had begun 15 years ago. Thus, his current statements to
the effect that his tinnitus had its onset in service are
contrary to what he has previously reported.
The only evidence supporting the veteran's claim for service
connection for tinnitus consists of his statements concerning
its onset. Since the veteran is not a medical expert, he is
not competent to express an authoritative opinion regarding
either his medical condition or any questions regarding
medical causation. See Espiritu v. Derwinski, 2 Vet. App.
492 (1992). In contrast, a VA audiologist opined, based on a
review of the record, that tinnitus began many years after
service, and that it was not related to any in-service noise
exposure or to the veteran's service-connected bilateral
hearing loss. This medical conclusion is of greater
probative value than the veteran's allegations regarding the
etiology of tinnitus. The Board concludes, accordingly, that
the preponderance of the evidence is against the claim for
service connection for tinnitus.
II. Increased evaluation for bilateral hearing loss
Under the applicable criteria, disability evaluations are
determined by the application of a schedule of ratings which
is based on average impairment of earning capacity.
38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic
codes identify the various disabilities. The VA has a duty to
acknowledge and consider all regulations which are potentially
applicable through the assertions and issues raised in the
record, and to explain the reasons and bases for its
conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although
the regulations do not give past medical reports precedence
over current findings, the Board is to consider the veteran's
medical history in determining the applicability of a higher
rating for the entire period in which the appeal has been
pending. Id; Powell v. West, 13 Vet. App. 31, 35 (1999).
As the veteran takes issue with the initial rating assigned
when service connection was granted for bilateral hearing
loss, the Board must evaluate the relevant evidence since the
effective date of the award; it may assign separate ratings
for separate periods of time based on facts found - a
practice known as "staged" ratings. Fenderson v. West, 12
Vet. App. 119 (1999).
The assignment of disability ratings for service-connected
hearing impairment is derived by a mechanical application of
the rating schedule to the numeric designations assigned
after audiometric evaluations are rendered. Lendenmann v.
Principi, 3 Vet. App. 345, 349 (1992).
The severity of hearing loss disability is determined for VA
rating purposes by the application of criteria set forth in
38 C.F.R. § 4.85, Diagnostic Code 6100, and § 4.86, of VA's
Schedule for Rating Disabilities. Under these criteria,
evaluations of bilateral defective hearing range from
noncompensable to 100 percent based on organic impairment of
hearing acuity as measured by the results of controlled
speech discrimination tests together with the average pure
tone threshold level as measured by pure tone audiometry
tests in the frequencies of 1,000, 2,000, 3,000 and 4,000
Hertz. The degree of disability for bilateral service-
connected defective hearing is ascertained by the application
of the rating schedule, which establishes 11 auditory acuity
levels, ranging from Level I (for essentially normal acuity)
through Level XI (for profound deafness). See 38 C.F.R. §
4.85, Diagnostic Code 6100.
In this case, the results of VA audiometric examination
conducted in June 2003 fail to demonstrate that a compensable
evaluation is warranted for the veteran's service-connected
bilateral hearing loss disability. Under the criteria set
forth in the Rating Schedule, the test results establish that
the veteran has Level III hearing in each ear. These
findings correspond to a noncompensable evaluation. 38
C.F.R. § 4.85, Table VII, Diagnostic Code 6100. Moreover, an
exceptional pattern of hearing impairment has not been
demonstrated so as to warrant application of 38 C.F.R. § 4.86
(2004). Although the veteran asserts that his hearing acuity
has diminished, these statements clearly have less probative
value than the objective findings demonstrated on recent
audiometric testing. The Board has no discretion in this
regard. Accordingly, the Board concludes that the
preponderance of the evidence is against the claim for an
initial compensable evaluation for bilateral hearing loss.
ORDER
Service connection for tinnitus is denied.
An initial compensable evaluation for bilateral hearing loss
is denied.
____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs